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 Alaska Administrative Code (Last Updated: January 12, 2017)
 Title 7. Health and Social Services.
 Part 7.1. Administration.
 Chapter 7.10. Licensing, Certification, and Approvals.
 Article 7.10.3. Barrier Crimes, Criminal History Checks, and Centralized Registry.

  Section 7.10.935. Review of request for a variance.  

Latest version. 
  • 	(a)  The commissioner will appoint three or more department employees to serve as a variance review committee to review requests for variances submitted under 7 AAC 10.930. The commissioner will include at least one employee from each department office responsible for licensing, certification, approval, or finding of eligibility to receive payments, but will not include an employee substantively involved in any recommendation to the committee made under 7 AAC 10.930(b).  
	(b)  In its review of a request for a variance, the review committee shall determine whether a variance is prohibited under 7 AAC 10.930(f) or (g). If a variance is prohibited, the review committee shall clearly indicate the prohibition in its recommendation under (e) of this section.  
	(c)  In its review of a request for a variance, the review committee shall  
		(1) consider the recommendations made by the department office under 7 AAC 10.930(b);  
		(2) consider the information supplied with the request and any other relevant information available to the department;  
		(3) determine whether the individual charged with a crime was subsequently convicted;  
		(4) if the individual was convicted of a lesser charge, determine whether the original charge was a permanent barrier crime or condition for which a variance would be prohibited under 7 AAC 10.930(g);  
		(5) determine whether any suspended imposition of sentence is still in effect, and review the nature of any applicable conditions;  
		(6) verify, as applicable, that  
			(A) conditions of parole or probation were met;  
			(B) court-ordered restitution has been made, or payments are current; and  
			(C) treatment, if required by the court, has been completed;  
		(7) if the crime committed related to financial exploitation, including theft, fraud, and bribery, or involved another form of dishonesty, including perjury and official misconduct, verify that the individual's duties make it unlikely that exploitation or dishonesty could occur with regard to recipients of services;  
		(8) if the barrier condition related to the abuse, neglect, or exploitation of a child or vulnerable adult, verify that the individual's duties make it unlikely that abuse, neglect, or exploitation could occur with regard to recipients of services;  
		(9) consider mitigating factors, including whether the individual has been employed by the entity or provider for a substantial period, has performed duties in a responsible and trustworthy manner, and has not been the subject of any complaint from a recipient of services or a representative of a recipient of services; and  
		(10) for a request for a variance submitted under 7 AAC 10.930(k), in addition to the matters described in (1) - (9) of this subsection, the review committee shall consider  
			(A) whether there were mitigating circumstances involved at the time of the offense;  
			(B) the individual's educational and employment history;  
			(C) any current letters of recommendation from employers or other individuals submitted in addition to the minimum required under 7 AAC 10.930(a)(3)(H);  
			(D) whether the individual is licensed under AS 08,  or became licensed after the individual was convicted of the offense or listed on the centralized registry;  
			(E) whether the individual passed a criminal history check conducted by the department before February 9, 2007, but after the individual was convicted of the offense; and  
			(F) whether the individual was issued a variance by the department before February 9, 2007, but after the individual was convicted of the offense for which the variance was issued.  
	(d)  The review committee may require the individual for whom a variance is sought to appear in person or by telephone for an interview.  
	(e)  If the review committee, after its review of available information and documentation, determines that the health, safety, and welfare of recipients of services will be adequately protected, the review committee shall recommend that the commissioner grant the request for a variance. If the review committee determines that the health, safety, and welfare of recipients of services will not be adequately protected, the review committee shall recommend that the commissioner deny the request for a variance. For a request for a variance submitted under 7 AAC 10.930(k), the review committee shall submit its recommendation to the director of the department office responsible for the licensing of, certification of, approval for, or finding of eligibility to receive payments for the entity or provider seeking the variance. The director shall consider the review committee's recommendation and make a written recommendation that the commissioner grant or deny the request.  
	(f)  The commissioner will consider a recommendation made under (e) of this section and will issue a decision on a request for a variance within 30 days after receiving all information required under 7 AAC 10.930. The commissioner will deliver a copy of the decision to grant or deny the request for a variance to the requesting entity or provider by mail or facsimile. The commissioner will include in the decision to deny a request the reasons for the denial, and will advise the entity or provider of the right to request reconsideration of the decision under 7 AAC 10.950. A copy of the decision will be provided to the department office responsible for conducting criminal history checks, the department office responsible for maintaining the centralized registry established under 7 AAC 10.955, and the department office responsible for licensing, certification, approval, or a finding of eligibility to receive payments.  
	(g)  In a variance granted under this section, the department will not identify the individual for whom the variance was requested, but will specify the barrier crime or condition for which the variance was granted, and will set out the terms and conditions of the variance, including an expiration date not to exceed the expiration date of the license, certification, approval, or finding of eligibility to receive payments applicable to the entity or provider that requested the variance.  
	(h)  A variance may not be transferred to another entity or provider. If the individual for whom the department granted a variance under this section remains associated with the entity or provider that requested the variance, and the variance is not revoked under (i) of this section, the entity or provider need not submit a new variance request each time it submits its application for renewal of its license, certification, approval, or finding of eligibility to receive payments, but must request a new criminal history check for that individual with each application.  
	(i)  The department office responsible for the licensing, certification, approval, or finding of eligibility to receive payments for an entity or provider will, in accordance with 7 AAC 10.945, immediately revoke a variance granted under this section if  
		(1) the department learns that it granted the variance based on false information provided by the individual to whom the variance applies or by the entity or provider that requested the variance; or  
		(2) the individual to whom the variance applies   
			(A) violates a term or condition of the variance;  
			(B) subsequently becomes subject to AS 47.05.310(c), or is charged with, convicted of, found not guilty by reason of insanity for, or adjudicated as a delinquent for, a crime listed in 7 AAC 10.905, or a similar crime in another jurisdiction; or  
			(C) ceases to be associated with the entity or provider that requested the variance.

Authorities

47.05.300;47.05.310;47.05.320;47.05.330;47.05.340;47.32.010;47.32.030

Notes


Authority
AS 47.05.300 AS 47.05.310 AS 47.05.320 AS 47.05.330 AS 47.05.340 AS 47.32.010 AS 47.32.030
History
Eff. 2/9/2007, Register 181; am 10/17/2007, Register 184; am 2/13/2008, Register 185